COMMONWEALTH PENNSYLVANIA v. GEORGE MILCHAK (10/06/77)

SUPERIOR COURT OF PENNSYLVANIA

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIAv.GEORGE MILCHAK, APPELLANT

No. 220 April Term, 1977, Appeal from the Order imposed by the Honorable Caram J. ABOOD on July 14, 1976, and filed to No. 76-382, of the Juvenile Division of the Court of Common Pleas of Cambria County, Pennsylvania.

COUNSEL

James H. Stratton, Jr., Assistant Public Defender, Ebensburg, for appellant.

John J. Kuzmiak, Assistant District Attorney, Ebensburg, with him D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 249 Pa. Super. Page 382]

This appeal arises from an "unofficial order of delinquency"*fn1 adjudicating the appellant delinquent, and ordering him to pay $40.00 per month for the support of his bastard child. Appellant challenges this order on the basis that the Juvenile Court lacks authority to order him to pay support under the Juvenile Act.*fn2 The Commonwealth contends, however, that the order was properly entered pursuant to the Juvenile Court's broad powers to determine the proper disposition of a delinquent child. For the following reasons, we reverse the support order entered by the court below.

On May 24, 1976, appellant was charged in a juvenile petition with failing to support his child born out of wedlock to the petitioner's daughter, in violation of 18 Pa.C.S.

[ 249 Pa. Super. Page 383]

§ 4323.*fn3 A hearing on this petition was held July 14, 1976, and testimony indicated that appellant and Jean Thomas engaged in sexual intercourse beginning in August, 1975, which resulted in the birth of a child on April 28, 1976. Appellant was subsequently found delinquent for failure to support the child, and ordered to pay $40.00 per month for that purpose. We allowed this appeal nunc pro tunc on September 9, 1976.

The Juvenile Act provides:

"§ 50-322. Disposition of delinquent child

If the child is found to be a delinquent child the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation, and welfare:

(1) Any order authorized by section 24 for the disposition of a deprived child.

(2) Placing the child on probation under supervision of the probation officer of the court or the court of another state as provided in section 24.2 under conditions and limitations the court prescribes.

(3) Committing the child to an institution, youth development center, camp, or other facility for delinquent children operated under the direction or supervision of the court or other public authority and approved by the Department of Public Welfare.

(4) Committing the child to an institution operated by the Department of Public Welfare or special facility for children operated by the Department of Justice." Act of December 6, 1972, P.L. 1464, No. 333, § 25, 11 P.S. § 50-322 (Supp. 1977-78).

The language of the Act is clear that orders of disposition following an adjudication of delinquency are limited by § 50-322 of the Act. Furthermore, we put the Commonwealth's limitless discretion argument to rest when we said:

"The Section (50-322) clearly confines the discretion of the lower court to choosing the most appropriate of the

[ 249 Pa. Super. Page 384]

four enumerated orders of disposition in a particular situation. To rule otherwise would not only distort the express provisions of Section 50-322, but also ignore the underlying purpose of the Juvenile Act." In Re Gardini, 243 Pa. Super. 338, 340, 365 A.2d 1252, 1253 (1976) (footnotes omitted).

Under the clear language of the Juvenile Act Section 24 does not authorize the court to impose a support order and we are therefore compelled to hold that the Juvenile Court is without statutory authority to order a juvenile to pay support for his illegitimate child. Order reversed.

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